Cross-border police cooperation in the European Union at the example of Germany and the Netherlands in the EUREGIO area

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Westphalian-Wilhelms University of Münster Institute of Political Science

1st Supervisor: Prof. Dr. Bernhard Frevel

Bachelor Thesis:

Cross-Border Police Cooperation in the European Union at the Example of

Germany and the Netherlands in the EUREGIO Area

Mareike Tälkers Dohlenweg 2

D-49835 Wietmarschen Phone: 0049-5908-454

E-Mail: mareike.taelkers@web.de

B.A. & B.Sc. Public Administration (Special Emphasis: European Studies) Student ID University of Twente: s1386271

Student ID WWU Münster: 397209

Word count: 13.462

Submission Date: 4^th August 2015  University of Twente

Department Management and Governance 2nd Supervisor: Dr. Guus Meershoek

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Declaration

I declare on oath that I authored the following paper independently and without assistance and that I only used the resources indicated in the paper. All extracts that have been copied from publications analogously or literally are marked as such.

Mareike Tälkers

Student ID WWU Münster: 397209 Student ID UT Enschede: s1386271

Wietmarschen, 2^nd August 2015  

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Table of Contents

List of Abbreviations ...I

1. Introduction ...1

2. Theoretical Framework ...3

2.1. The Theory of (Liberal) Intergovernmentalism ...3

2.2. Europeanization of the Police ...5

3. Legal Foundations for Police Cooperation ...8

3.1. European Treaties from Maastricht to Lisbon ...8

3.2. Schengen Agreement and Convention 1985/1990 ...9

3.3. Prüm Convention 2005 ...11

3.4. Interstate Treaty between Germany and the Netherlands 2006 ...12

4. German-Dutch Police Cooperation in the EUREGIO Area ...14

4.1. Cross-Border Police Team in Bad Bentheim ...15

4.2. Cross-Border Hot Pursuit and Observation ...18

4.2.1. Cross-Border Hot Pursuit ...18

4.2.2. Cross-Border Observation ...20

4.2.3. Estimation of both Instruments ...21

4.3. Cross-Border Exchange of Data ...21

4.4. Police Cooperation as a Form of (Liberal) Intergovernmentalism ...24

5. Conclusion ...27

6. References ...30

7. Annex ...35

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List of Abbreviations

EAW European Arrest Warrant

EC European Community

ECSC European Coal and Steel Community

EU European Union

Europol European Police Office

EUREGIO European Region

JIT Joint Investigation Team

SIS Schengen Information System

TEU Treaty on European Union

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1. Introduction

European integration and collaboration of the member states of the European Union (EU) proceed in many different policy fields; for instance, in terms of economic affairs. The domain of internal security is also not limited to the national level any more. The reason is that, in times of open borders, national states cannot guarantee internal security solely by themselves. Instead, they depend on a European or, respectively, international cooperation of the police for the reason that crime does not stop at borders. Due to modern security problems, such as terrorism, crime prosecution is high on both the national and the European political agendas (Kietz & Maurer, 2006: 3). This thesis will refer to the definition of police cooperation as “all practical cooperation with regard to cross-border criminal investigation involving the police and the competent judicial authorities“ (Spapens, 2010: 74). The relevance of the police’s international cooperation has increased significantly because the currently on-going globalization also strikes crime (Knelangen, 2008: 38). For example, in 2013, there were approximately 3600 internationally organized crime groups within the EU, notably active in drug trafficking and fraud (Europol, 2013: 33). This high number underlines the importance and urgency to further improve international police cooperation. In order to meet the challenges for internal security, the institutions need to establish better networks. Thus, the police institutions rely on the networks the European Integration provides (Röhrl, 2010: 294). Moreover, the EU, as a political actor, sets as an objective to “establish police cooperation involving all the Mem- ber States’ competent authorities, including police, customs and other specialized law enforcement services in relation to the prevention, detection and investigation of criminal offenses“ in Article 87 of the Lisbon Treaty (European Union, 2007). Thus, the cooperation of police institutions is clearly a matter of the process of Europea- nization at the operative level (Müller, 2012).

With regard to the European police cooperation, there are diverse tools and measures on the European level. For example, the European Police Office (Europol), as a law enforcement agency, (Europol, 2013: 9) was established in 1998 in order to support national polices from a superordinate level (Kämper, 2001: 56). Another example is the European Arrest Warrant (EAW), which is a declaration that a wanted criminal must be arrested in all EU member states (Lagodny, 2010: 335). Despite this, “police cooperation is not only high on the agendas of the institutions of the EU […], but also on the agendas of the local authorities in border areas“ (Spapens, 2010: 73). Especially regions which are directly located at the borders might benefit from a strong cross-border cooperation. However, several obstacles need to be overcome in order to create a successful bi-national cooperation. One example for such a bi-national cooperation is the cross-border police team in the European Re- gion (EUREGIO) area which is defined as being located at “the Dutch-German border area covering parts of the Dutch provinces Gelderland, Overijssel, and Drenthe

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as well as parts of the German federal states Nordrhein-Westfalen and Niedersach- sen“ (Euregio, 2015). German Police forces cooperate with the Dutch Police forces by forming teams which consist of policemen of both nationalities. These bi-national teams work primarily along the borders. Additionally, there is the chance of cross- border observations, exchange of data or Joint Investigation Teams (JIT). This thesis will concentrate solely on cross-border forms of police cooperation between Germany and the Netherlands and will not deal with other European tools, like EAW or Europol. Although the latter are very interesting topics for research, the limited scope of this work requires a selection of one precise and specific field. For this reason, this thesis puts its emphasis on analyzing German-Dutch cooperation structures without considering police cooperation forms on the EU-level because my research interest lies in studying how the cooperation in the EUREGIO area works.

The focus of this paper will be on bi-national cross-border cooperations in the context of European police cooperation with main respect to the cooperation of Germa- ny and the Netherlands in the EUREGIO area. Therefore, a main research question is raised: Under which conditions do the German-Dutch police forces cooperate in selective operative fields in the EUREGIO area along the border? Certain structures and competences will be analyzed in this context. Another research question to be asked is the following: How can this police cooperation be classified in terms of Eu- ropean Integration from a political science perspective?

Concerning the structure of this thesis, a theoretical framework for the latter analysis follows this introduction. The theory of Intergovernmentalism according to Stanley Hoffmann (1965) and the theory of the Europeanization of the police, which was set up by several authors, for instance Wagner, Knelangen, Gusy and Schewe, form the theoretical basis for this research. The third section deals with relevant treaties that provide the legal foundation for police cooperation, taking both EU treaties and treaties of only several states into account. Next, a main analysis of different elements of police cooperation will be employed, including the Cross-Border Police Team, Cross-Border Observation, Cross-Border Hot Pursuit as well as Cross-Border Exch- ange of Information. Afterwards, the theoretical part will be applied to the cooperation in practice by using a political science approach. Finally, the results of this thesis will be outlined in the conclusion, which also offers a short prospect for the future so that the research questions can be answered.

With regard to the methodology used, this paper is mainly based on a literature analysis. Not only primary but also secondary literature of different authors will be consulted in order to conduct the research and find an answer to the main research questions. Also, newspaper articles and important treaties will be used for the analysis. In general, literature was selected on the basis of the aspects relevance and

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currency. Furthermore, the coordinator of international cooperation at the police department of Osnabrück, Markus Piepmeyer, provided me with helpful information about internal structures, such as an e-mail about data exchange procedures. ¹

2. Theoretical Framework

In order to provide a sufficient theoretical background for the thesis, this section takes into consideration the process of the European Integration according to the Theory of (Liberal) Intergovernmentalism. Furthermore, it aims at conceptualizing the process of the Europeanization of the police.

2.1. The Theory of (Liberal) Intergovernmentalism

There are many different theories trying to explain why and how European Integrati- on happened after the Second World War. At the beginning of the development of the scholarship on that topic in the 1960s, two major theories dominated the academic debate.

On the one hand, there was the Theory of Neo-Functionalism according to Ernst B. Haas (1958). In short, he assumes that (European) integration “is the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities towards a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states“ (Haas, 1958: 16). Another main proposition of Haas was the concept of spill- overs, which means that once integration happens in one policy field, it will spill over to other fields and, thus, will further increase.

On the other hand, the Theory of (Classic) Intergovernmentalism according to Stanley Hoffmann, developed in 1966, was a prevalent theory among the spec- trum of theories of European Integration (Moravcsik & Schimmelfennig, 2009: 67). ² It can be classified as a realist theory and also belongs to the classical theories of International Relations. It was basically constructed as a harsh criticism of Neo- Functionalism according to Ernst B. Haas (1958), which dominated the International Relations up to then. Hoffman mainly criticizes the assumption of Neo-Functionalism that the establishment of a new political system is a quasi-natural process. Another point of his criticism refers to the fact that Neo-Functionalists do not differentiate between policy fields which are suitable for integration (low politics) and those fields which are not (high politics) (Bickerton, Hodson & Puetter, 2015: 15). Thirdly, Neo- Functionalism does not take into account that nation states could refuse the shift of competences to a higher level, which Hoffmann assesses as being important (Fa-

Further quoted as Piepmeyer, 2015, see Annex.

1

The academic debate about the Theory of Intergovernmentalism in political science is still on-going, 2

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ber, 2005: 89). Hoffmann criticizes the underestimation of governments of nation states, which mainly influence integration (Verdun, 2002: 11). As a consequence of these critical aspects, he generates his own opponent point of view on European Integration.

Relating to the main assumptions of Intergovernmentalism according to Hoffmann, the European Community can be seen as “the result of strategies pursued by national governments acting on the basis of their preferences and power“ (Moravcsik, 1993: 496). The most important point made by Hoffmann was his famous statement “that the nation state, far from being obsolete, had proven‚ obstinate‘“ (Hoffmann, 1966). He assumes that the only legitimate key political actors are the sovereign nation states, which act rationally and aspire towards increased influence and power (Faber, 2005: 87). They are seen as the indispensable units of European Integration because if nation states were not willing to integrate, this process would not be put into motion so that the establishment of a political system is the opposite of a natural process. Intergovernmentalists further argue that integration only succeeds if nations can increase their international influence and amend the performance of their domestic tasks. Due to the fact that nation states predominantly follow their own interests, they see integration as a measure to obtain nation states. There is no intention to create a new (supranational) structure which goes beyond the nation state (Faber, 2005: 88). Their interest is two-sided: On the one hand, they can be seen as gatekeepers aiming at protecting their own sovereignty. On the other hand, they want to foster the common strength of Europe (Fa- ber, 2005: 93). For example, common strategies to solve specific problems could be useful (Faber, 2005: 94). States find solutions by bargaining and negotiating (Mora- vcsik, 1993: 497).

It has to be taken into account that Hoffmann puts strong emphasis on the differentiation between high and low politics. According to Hoffmann, in high politics the nation states are not willing to integrate because the national interests are too severe to find a compromise. States might risk a loss of autonomy if they integrated in high politics. However, in low politics, it is more probable that integration happens because the national interests are less important; thus, states are more willing to come to a common agreement (Hoffmann, 1966: 144). The “logic of diversity“ (Hoffmann, 1966: 144) implies that losses in high politics cannot be com- pensated by gains in low politics, such as welfare issues, which is why cooperation between states is limited to low politics.

Reformulating the Theory of Classic Intergovernmentalism of Stanley Hoffmann, Andrew Moravcsik developed the Theory of Liberal Intergovernmentalism in 1993. It is highly relevant for this thesis because it focuses especially on regional integration.

The Theory of Liberal Intergovernmentalism shares with Hoffmann’s theory its main arguments, namely, that states are seen as the main (decision-making) actors on

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the international level and behave rationally by seeking to maximize utility (Mora- vcsik & Schimmelfennig, 2009: 68). Moravcsik, whose theory concentrates on preference formation and international bargaining, depicts the integration process as a model including three stages: At first, he assumes that the chiefs of governments from the nation states have to aggregate, format, and articulate their national preferences on domestic politics vis-à-vis the EU (Pollack, 2010: 17). In particular, economic costs and benefits influence these national interests (Moravcsik, 1993: 480).

Secondly, the rationalist bargaining process is carried out with the aim to realize the national preferences. These are brought to an inter-state bargaining table almost without any influence for supranational institutions. According to the promoters of Liberal Intergovernmentalism, agreements and preference convergence between the nation states show their relative bargaining power, depending on the relevance of the issue that is on the table (Pollack, 2010: 17). In the third step, several institutions and policies are developed as a result from the second stage; for example, such institutions which “secure those outcomes in the face of future uncertainty“ (Mora- vcsik & Schimmelfennig, 2009: 69). It is about institutional choice (Bickerton, Hod- son & Puetter, 2015: 17).

Over the years, many other (more modern) theories on European Integration have been developed that challenge the traditional ones. However, (Liberal) Intergo³ - vernmentalism has risen to the “the leading theory of European Integration“ (Pollack, 2010: 4). Because of its “theoretical soundness, empirical power and utility“ (Mora- vcsik & Schimmelfennig, 2009: 67), the Theory of (Liberal) Intergovernmentalism has been chosen for this thesis. It was proven to be very successful and therefore serves as theoretical background for analyzing cross-border police cooperation.

2.2. Europeanization of the Police

It can be stated that a process of Europeanization is in the making. The definition of the term “Europeanization“ is highly contented in the literature because many (at least partly) different definitions exist. For example, there is the definition that it is “a process by which domestic policy areas become increasingly subject to European policy-making” (Börzel, 1999: 574). This one only focuses on the content of policies:

Those policy fields that classically used to be limited to national policies and that are considered by decision-making on EU-level more than ever. Yet, it does not include general governance structures. A broader definition of Europeanization would be

“the emergence and development at the European level of distinct structures of governance“ (Risse, Cowles & Caporaso, 2001: 3). This definition emphasizes that

Apart from Neo-Functionalism and (Liberal) Intergovernmentalism, there are also other approaches, 3

such as Federalism, Supranationalism, Multi-Level Governance, (Historical) Institutionalism, Construc-

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there is a need for a development of governance structures going beyond the nation state. However, quasi merging the two definitions above, this paper regards Euro- peanization as “the institutionalization of formal and informal rules developed in a process that involves a supranational or an intergovernmental body“ (Vukasovic, 2013: 312). This definition has been chosen because it includes the opposite of supranational and intergovernmental organizations/institutions. Besides, it sets its focus on the institutionalization which can be clearly seen within the EU.

Looking at the beginnings of the EU, there was the European Coal and Steel Community (ECSC), which was set up by six nation states with the Treaty of Paris (1951) in order to unite the European countries after the Second World War (Van Oudenaren, 2005: 31f.). In the following years and decades, the European Integrati- on further proceeded and the influence of those institutions that were established to rule the European Community (EC) continuously increased. For example, the Euro- pean Parliament’s influence was enlarged and it became more capable of acting.

Also, the task of the European Commission today is not limited only to initiating policy suggestions, but it quasi governs the EU. The power, influence, and importance ⁴ of the EU have risen and more issues are now relevant for the EU policy-making level. In some policy fields, like market, standards, and norms there is an institutionalization to a high degree. In contrast to that, there are also policy fields that are more characterized by policy-making in the nation states. Internal security is a policy field which is classically ruled by the nation states themselves (Occhipinti, 2003:

226).

However, there is not only a general process of Europeanization, but also one that more concretely refers to the crime fighting institution of the police (Occhipinti, 2003:

234). Relating to the process of Europeanization of the police, it has been procee- ding during the last years. Wolfgang Wagner (2004: 1) states that cooperation within the EU concerning internal security has been emphasized since the 1990s. At this point the question comes up why internal security, which used to be strongly linked with the nation state’s competences, was recently shifted to being a European issue.

Gusy and Schewe (2003: 185) claim that this development is not self-evident due to the general responsibility of the nation state. In the traditional view, the police were usually seen as an institution demonstrating the monopoly of force within a sovereign national state (Knelangen, 2008: 33). Nevertheless, Gusy and Schewe also argue that a cooperation between the police institutions of the individual countries is finally inevitable because there are no frontiers for crimes (Gusy & Schewe, 2003:

186).

The foundation of the EU with the TEU 2009 is rooted in the EC.

4

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Three tendencies fostering the development of the Europeanization in the field of internal security can be found. At first, transnational terrorism and organized crime have increased and are reasons for the necessity of a cross-border cooperation of European police forces (Wagner, 2004: 1). These new forms of international crimes challenge national police institutions because criminals easily cross European borders, making it hard to locate and catch them. Due to the fact that nation states ac- cept the territorial sovereignty of others, it is very difficult for national institutions to prosecute criminals if these do not stay in one territory (Kämper, 2001: 23). As a reaction to cross-border crimes (for example irregular immigration), the law enforcement authorities of the nation states have adapted and started to intensify cooperation (Müller, 2012).

Secondly, as a consequence of the Schengen Agreement (see Chapter 3.1), it was to be expected that the lacking border controls enhance the opportunities for criminals (Kämper, 2001: 25). Knelangen (2008: 33) depicts the globalization of crimes because, today, there are more global structures of delinquencies than there used to be in the past. These structures benefit from the abolition of passport controls at the internal borders of the members of the Schengen-area. Those used to be an instrument for safeguarding the security at the borders (Wagner, 2004:1). The opportunities of the states to control their territory are weakened due to the open borders. As a reaction to that, the police forces of the different nation states work together and exchange important information (Knelangen, 2008: 34). In this way, they intend to compensate for a potential loss of security (Kämper, 2001: 24).

Thirdly, Wagner argues that a cooperation in the field of internal security is an important addition to an economic integration of the EU countries (Wagner, 2004:1). Governments of the nation states are in need of international cooperation (Knelangen, 2008: 36) when they face modern challenges concerning internal security.

In addition to the process of Europeanization, which includes all member states of the EU, there are also multi- and bilateral cooperation forms which are limited to a certain number of actors and regions. “[S]ince 1999 the EU has experienced both intensified police cooperation and gradual Europeanization in the area of internal security“ (Occhipinti, 2003: 234). It is important to underline that although the Euro- peanization of the police is continuously advancing, most of the international cooperation still takes place in forms of multi- or bilateral cooperation between several states (Knelangen, 2008: 35). Although these forms do not replace the unification process of the EU, it is important to highlight that they are not contradictory to them. By starting to cooperate, the police forces of the EU member states meet the modern challenges in the field of crime and security which result from increased organized crime and the opening of the borders.

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Summing up, the theory of Europeanization of the police provides a good explanati- on for a cooperation of national police forces in terms of the EU level. This is why this theory will also be consulted in this thesis in addition to (Liberal) Intergovern- mentalism. As a next step, a look at relevant treaties forming the basis for cross- border police cooperation is required.

3. Legal Foundations for Police Cooperation

The fact that “[o]ver the past few decades, important steps have been taken to enhance the legal framework for police cooperation within the European Union and at national level“ (Spapens, 2010: 101), is what stands out upon closer investigation of the legal foundation of police cooperation in Europe. The treaties of the EU, the ⁵ Schengen Agreement (1985) and Convention (1990), the Prüm Convention (2005), and the Interstate Treaty between Germany and the Netherlands (2006) form the legal opportunities for the German-Dutch police cooperation, and are a consequence of the change of framework conditions (Müller, 2012). Therefore, this section will focus on significant aspects of the four treaties, which mark the most important steps in this context, and explain their relevance. This chapter approaches the treaties beginning with the most general EU treaties, which apply to all EU member states, to the more specific treaties being in force only for several states.

3.1. European Treaties from Maastricht to Lisbon

In the context of police cooperation in the EU, it is important to consider the legal framework of the EU, namely the treaties of Maastricht, Amsterdam, and Lisbon in chronological order. In short, the Maastricht Treaty of 1992 classified different pillars of policy fields that constituted the EU. The third pillar was “Police and Judicial Co- operation in Criminal Matters“, which included the fight against organized crime and ⁶ cooperation in police issues (Wagner, 2004: 5). This pillar was organized in an intergovernmental form. However, the progress in police cooperation was not as successful as expected (Wagner, 2009: 235), which was why another treaty was set up.

Building upon Maastricht, the Amsterdam Treaty of 1997 aimed at creating one sin- gle European room of freedom, security, and law. This also includes an inter-EU cooperation of police forces (Baldus, 2009: 61f.). With the Amsterdam Treaty, most of the fields that used to be in the third pillar were moved to the supranational first pillar, the European Community. However, police and justice cooperation remained in

The most relevant treaties of the European Union for this thesis are the Treaty of Maastricht of 1992, 5

the Amsterdam Treaty of 1997, and the Treaty of Lisbon 2009.

The original title was “Cooperation in Justice and Home Affairs under the Maastricht Treaty“. When 6

the Treaty of Amsterdam was set up in 1997, the title was changed into “Police and Judicial Cooperati- on in Criminal Matters“ (Kent, 2008: 11).

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the third pillar and, thus, still had to face the unanimity rule in the European Council.

This means a hindered decision-making (Kietz & Maurer, 2007).

This problem is meant to be solved by the Treaty of Lisbon 2009 (TEU) (Eu- ropean Union, 2007). It formally justified the replacement of the European Commu- nity by the EU (Murschetz, 2010: 110) and aimed at turning the EU into a more democratic, transparent, and efficient system by introducing several institutional re- forms. Decisive for this thesis is that the TEU included relevant changes of framework conditions in terms of police cooperation (Niemeier, 2010: 198). This has become relevant because “the increase of cross-border criminal activity [was] […] a genuine threat“ (Murschetz, 2010: 110) when border controls were abolished (see Chapter 3.2). With the TEU 2009, the pillar structure was reversed so that the former third pillar became a supranational issue (Murschetz, 2010: 110). The treaty aimed at “’communitaris[…][ing]’ police and judicial cooperation in criminal matters“ (Militello & Mangiaracina, 2010: 172). The implementation of an ordinary legislative procedure meant a major improvement and simplification of political agreement and cooperation. Instead of the rule of unanimity, a qualified majority in the Council of the European Union is now sufficient to set up new laws. This is likely to speed up decisions (Niemeier, 2010: 199). Also, the tool of emergency break is not applicable so that policy making on EU level in terms of police cooperation is likely to become easier and faster. However, the range of the argument is limited, noting that hot pursuit and operational police cooperation are not covered by the ordinary legislative procedure. Instead, these two aspects, which concern the sensitive field of state sovereignty, are still handled with unanimity (Heid, 2015: 75). Additio- nally, the TEU further fosters the coordination tasks of Europol and widens its responsibility (Niemeier, 2010: 199). Apart from that, it also includes measures to enhance data protection (Murschetz, 2010: 114) which is important in terms of preven- ting data abuse.

To put it in a nutshell, the EU treaties make up the superordinate legal framework for the field of justice and police on which the other treaties, which only affect several states, build upon. As a consequence, further treaties can be specified more precisely. The most current TEU strengthens European police cooperation and additionally considers rights for data protection (Murschetz, 2010: 120). Compared with the former EU treaties, the TEU can thus be seen as a major step forward.

3.2. Schengen Agreement and Convention 1985/1990

In the time of the Cold War, it was the future vision of a few European states to create a Europe without borders. More precisely, the aim of Germany, France, and the Benelux States was to make the borders of Europe more permeable so as to facilitate the movement of people and goods and to create an integrated market. Another crucial target was to create common security measures in order to fight cross-border

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crime. Because of terrorism in several European states in the 1970s, one saw a need for increased police cooperation (LeBeuf, 2002: 56). For these purposes, the six states put that topic on their political agendas and finally signed an interstate agreement on the disestablishment of border controls at their internal frontiers on 14^th July 1985 (Schott, 2009: 89). In the course of the following years, many other European states joined the agreement so that it has 26 members today. In a second step, the “Schengen Convention“ (European Union, 1990), which included long-term compulsory arrangements for the member states, was established (Harings, 1998:

64). While the agreement was formulated in a too general way, the Convention was established to further carry out the agreement in order to make it more effective (Brammertz, 1999: 223). Thanks to the Schengen treaties, the framework conditions for police cooperation were given. Articles 39 to 47 of the Schengen Convention focus on the improvement of collaboration (Brammertz, 199: 224) and thus form the basis for further treaties in this field.

From the implementation on, people could cross the internal borders of the member states without being controlled. Instead of passport controls, some other measures were set up in order to compensate for a potential loss of security; for example, a common visa system in the Schengen area and a common standard of controls at the external borders (Schott, 2009: 90). The Schengen Agreement included “starting points and ideas about rather intensive police cooperation“ (LeBeuf, 2002: 56). Such an establishment of a more intensive cross-border police cooperation of the nation states should replace the national border controls (Müller, 2012).

Besides, it is compulsory for the police of the states that signed the Schengen Con- vention to help each other in terms of police work, of course following their national rights and their responsibility (Brammertz, 1999: 227). The Schengen treaties also made the sharing of information possible; for example, by founding the Schengen Information System (SIS) for police tracing, crime prosecution, and prevention (Fij- naut, 2015: 33). With the help of the shared information system’s techniques, the police can search more easily for certain criminals, missing persons or those at risk, or objects within the whole Schengen area (Wagner, 2004: 3). In terms of the legacy of an inter-EU exchange of police relevant data, Article 46 of the Schengen Conven- tion provides the legal basis (Brammertz, 1999: 224). It allows sending information between states in order to prevent crimes so as to provide internal security. It will also be possible to exchange information between the police institutions directly if certain urgency is given.

Due to the Schengen Convention, a paradoxical situation has risen: On the one hand, there are free borders because a permeability of borders and the free movement of persons are desired. On the other hand, nation states are restricted in their ability to guarantee internal security (Glaeßner & Lorenz, 2009: 44). Tillmann Schott (2009: 109) states that the lacking border controls are a challenge for the in-

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ternational cooperation of the police. This situation requires a close cooperation between the actors in order to grant internal security.

In summary, the integrated Schengen framework shows that the signatory states have a great will to foster European integration (Schott, 2009: 108). It is cha- racteristic for the treaties that they create the foundation for all kinds of police cooperation forms. When the Schengen Convention was implemented, the sensitive question whether foreign policemen could also act on other territories was discussed controversially. Nation states worried about a loss of sovereignty (Wagner, 2009:

234). In retrospective, it can be assumed that the Schengen treaties set the framework and were an impulse for establishing new forms of cross-border cooperation (Wagner, 2009: 234) that were set up several years later, helping to grant security.

Although there are some exceptions of states not having signed the treaties, one could assess the latter as being the origin for all further treaties dealing with cross- border police cooperation in the EU and thus an “enormous step forward“ (LeBeuf, 2002: 57).

3.3. Prüm Convention 2005

The Benelux States, Germany, France, Spain, and Austria signed the Prüm Conven- tion on 27^th May 2005, because they wanted to deepen the operative cooperation between the national crime prosecution authorities (Kietz & Maurer, 2007). They aimed at improving cross-border (police) cooperation in the EU, especially in the fields of terrorism, illegal migration, and cross-border crimes (Kietz & Maurer, 2009: 111).

More concretely, the Convention aimed at harmonizing the cross-border exchange of police data so that these can be provided at the same conditions as within the nation state (Knelangen, 2008: 37). The Prüm Convention was the result of intergovernmental negotiations outside the EU framework due to the fact that it would have been very difficult to set up such a treaty on that level because of the principle of unanimity. Besides, many states were not willing to share their sovereign rights in the sensitive field of police relevant data (Kietz & Maurer, 2006: 3). The Prüm Con- vention, therefore, can be seen as increased cooperation of several European states according to the role model of the Schengen treaties (Kietz & Maurer, 2006: 9) in the form of general international law. It goes beyond the regulations of the Schengen Treaties in many aspects so that police cooperation of the Prüm Convention member states can take place on a higher level. However, its regulations do not go as far as those of the bilateral treaty between Germany and the Netherlands (Kietz & Mau- rer, 2007).

The Prüm Convention created a network and flow of information that was a great progress in terms of police cooperation (Kietz & Maurer, 2009: 121). It mainly deals with an increased, automatic exchange of certain data between the states, for example DNA data and data concerning potential criminals, in order to prevent and

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prosecute crimes (Kietz & Maurer, 2006: 5). The signatories of the treaty are net- worked and can access each other’s online DNA databases (Kietz & Maurer, 2009:

121), which was very innovative. By doing so, it can be checked whether a matching DNA or a fingerprint can be found in the databases of other countries. If so, a “re- quest for mutual legal assistance“ (Spapens, 2010: 76) can be made so that perso- nal data can be provided. This leads to an easier police work of the member states because they have a wider scope of data available from abroad. Also, the treaty should make the exchange of information faster and more efficient (Papayannis, 2008: 231) so that less costs are necessary in order to attain benefit. Apart from that, the treaty covers precise opportunities for an operative cooperation of police forces (Kietz & Maurer, 2006: 5), for instance common patrols. Moreover, police officers are allowed to “participate in interventions in foreign territory“ (Murschetz, 2010:

126) and can get sovereign rights, making interventions faster. The Treaty of Prüm also includes data protection guidelines, control systems by data security authorities, the regulation that data can only be used for a certain defined purpose, and concrete instructions about the time period data is allowed to be stored (Kietz &

Maurer, 2006: 7). Most of the contents of the Prüm Convention have been transfer- red to EU law in 2008.

Summed up, the Prüm Convention can be seen as a “concrete step forward to improve European integration“ (Bellanova, 2008: 203). It provides the necessary legal as well as technological instruments that help to make cross-border police work more efficient and has mainly improved the exchange of data (Papayannis, 2008: 230). It should be noted that there are also critical issues about the Prüm Convention, such as the fact that the EU institutions were evaded by the intergovernmental treaty. The treaty sets up regulations that are in force parallel to EU treaties; this results in a fragmentation of regulations (Papayannis, 2008: 245). However, according to Kietz and Maurer (2009: 111), Prüm should be the starting point for more collaboration within the EU in the field of police.

3.4. Interstate Treaty between Germany and the Netherlands 2006

Although the Schengen treaties, theoretically enabling cross-border police cooperation, were already implemented, Wagner claimed in 2004 that further bi-national arrangements between member states are necessary for a concrete exchange of police officers (Wagner, 2004: 5). Germany and the Netherlands had a need for a treaty that specifies the regulations of the other treaties concerning police cooperation. It was their aim to create a legal basis making it possible for police forces from both countries to cooperate so as to be able to better fight international crime and cross- border dangers. Since the implementation of the Interstate Treaty of Enschede between Germany and the Netherlands on 1^st September 2006, both states have co- operated in terms of criminal prosecution and defense of dangers in a more intensi-

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ve way. While the treaties explained above were concluded between several states, the Interstate Treaty is only formed between those two countries. Unlike other treaties that were set up by higher-level institutions, this treaty was established directly by the two countries themselves.

The treaty includes a better exchange of information, cross-border police procedures, and forms of direct support. Furthermore, it gives the opportunity of cross-border observation and pursuit without any regional or temporal limits. Another significant issue is that “communication between the police and prosecution services of Germany and the Netherlands“ (Spapens, 2010: 77) are enabled. The treaty also forms the basis for a legal exchange of DNA while preliminary proceedings are done. Due to the implementation of this treaty, policemen of the other country, respectively, are legally permitted to support the national police forces and to take over sovereign responsibilities (Kietz & Maurer, 2009: 117). On top of that, mutual patrols with police officers of both countries are possible. By addressing these aspects, the treaty clearly aims at establishing a more secure environment in both countries.

Concluding, the German-Dutch Interstate Treaty is of utmost relevance for the police cooperation in the EUREGIO area because it created the required, specified legal basis. It enables concrete opportunities, like cross-border observation and hot pursuit so that the border between the two countries does not represent an obstacle for police work across borders any more. The progressive Interstate Treaty between Germany and the Netherlands demonstrates a very high level of police cooperation, which has not been reached in the EU before (Kietz & Maurer, 2009:

116). The special thing about this treaty is that, theoretically, the police forces have a wide range of legal opportunities to cooperate. According to Wolfgang Schäuble, this Interstate Treaty can be seen as a role model for other bilateral agreements (Bun- desministerium des Innern, 2006). It was also a source of inspiration for the Prüm Convention 2005.

This chapter has revealed that today there are more legal opportunities for the police to cooperate with institutions from other states than ever before. Although gua- ranteeing internal security mostly remains a task of the nation state, legislative powers pay more attention to the need for police cooperation across borders. Never- theless, it is important to highlight that the treaties do not harmonize national legal systems. There are more possibilities for police forces to act on foreign territory, but the latter have to conform to the law of the territory they are acting on. Theoretically, the Treaties of Lisbon, Schengen, Prüm, and Enschede provide a wide base of legal opportunities. Whether and to what extent these are also used in practice cannot be answered by this thesis. Therefore, an empirical study would be necessary. Howe- ver, the Interstate Treaty is of big relevance for the next section since it legalized the German-Dutch police cooperation in the EUREGIO area. Compared to the other

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treaties discussed above, the Interstate Treaty represents the most specific one fo- cused on practice.

4. German-Dutch Police Cooperation in the EUREGIO Area

The sections above reveal that the continuous progress of European Integration has a high impact on the police which earlier used to be a classical national domain but now undergoes many changes. When the nation states realized in the past that they could not guarantee sufficient internal security solely with their national instruments, they began to push cooperation (Wagner, 2004: 2). Especially when a nation's limit of work ability is reached, police cooperation should be taken into consideration.

Kämper stated already in 2001 that there was a need for an increased police cooperation in Europe (Kämper, 2001: 28). This demand was especially covered in the first decade of the 21^st century. As explained above, European nation states were willing to restrict their own sovereign rights and to set up several treaties that legally enabled police cooperation. Gusy and Schewe (2003: 191) claimed already twelve years ago that the interstate police cooperation should be pushed forward further.

This is what Germany and the Netherlands did by providing the legal framework of the Interstate Treaty 2006 and by realizing the cooperation opportunities in practice.

The German-Dutch cooperation in the EUREGIO area serves to investigate a bi-national cooperation in depth because it exemplifies very well how two states join their forces in order to face the problem of cross-border crimes.

In practice, there are different ways of realizing a cooperation. Above all, Ar- ticle 4 of the Interstate Treaty gives an overview of possible cooperation forms, such as cross-border observation or hot pursuit which can be used in the EUREGIO area.

When looking at the diverse cooperation forms, different dimensions have to be dis- tinguished. For example, police cooperation can take place at the operational level.

Such an operational form of police cooperation could be mutual patrols of two states or bi-national police teams. Another dimension that plays a big role is the technical one. It is a necessary precondition for successful collaboration that a well-functioning (communication) technique is existing and at hand. The SIS serves as an example for cooperation in technical terms. A third significant dimension is law, which differs from state to state. If the legal basis for taking actions is missing, then police cooperation cannot be realized. It should be noticed that police cooperation forms have to be analyzed along certain dimensions in order to offer a structured analysis.

This thesis concentrates on analyzing cross-border police cooperation in consideration of certain framework conditions. In order to find an appropriate answer to the main research question, the following aspects of the EUREGIO cooperation are analyzed in a holistic way, addressing both negative and positive views, and risks and chances: Cross-border Police Team in Bad Bentheim, Cross-border Ob-

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servation, Cross-border Hot Pursuit, and Cross-Border Exchange of Data. These four operative fields have been chosen because they make up the most important aspects of a police cooperation.

4.1. Cross-Border Police Team in Bad Bentheim

The Cross-Border Police Team in Bad Bentheim is very interesting because when it was founded in 2008, it was the first one founded as an institution and thus unique in Europe. For this reason, this operational form of cooperation seems appropriate to be used for research. Basically, the Articles 19 and 36 of the Interstate Treaty between Germany and the Netherlands allow for police officers from the other country, respectively, to support national police forces in order to prevent dangers for internal security and to take over tasks which fall into the category of sovereign missi- ons. Before that treaty was implemented, the police institutions of the two states had already worked together but without any formal structures (Anonymous, 2011).

The institutionalized cooperation of the Cross-Border Police Team exists since 26^th November 2008, and reflects an integrated approach of police cooperation. It concentrated on long-term work which could fight (international) crimes along a border in Europe without being confronted by any barriers (Anonymous, 2014). The Cross-Border Police Team is a mixed organization that altogether consists of about 20 police officers from Germany and the Netherlands, who come from the regions around the German-Dutch-Border: Polizeidirektion Osnabrück, Kreispolizeibehörde Borken, Bundespolizeidirektion Hannover, Koninkijke Marchausee District Noord- Oost and Politie in Oost-Nederland. The organization is located in Bad Bentheim, Germany, in the “Bundespolizeiinspektion“ at the highway A30 and is in charge for the region EUREGIO (Bundespolizei, n.d.). In this region, especially drug offenses, but also irregular immigration is registered (Bundesministerium des Innern, 2007: 2, 5). The team is mainly active in the field of crime prevention and prosecution. The mission of the Cross-Border Police Team is operational, which means that it is a practical form of cooperation and not only a theoretical agreement. It aims at leading to a higher level of security for citizens (Kooperationsvereinbarung der beteiligten Behörden zum Projekt „Grenzüberschreitendes Polizeiteam“ [GPT], 2008).

The Cross-Border Police Team provides mutual patrols composed of at least one official belonging to a German police institution and of one official belonging to a Dutch police institution. Basically, the patrols are controlling the highways and the region along the border. In practice, the team can work in civilian clothes or unifor- med. If the team is working in Germany, then the German police officer has the leadership (and vice versa) (Anonymous, 2014). The police officer of the other country, respectively, also possesses sovereign competences if the national official is pre- sent (Bundespolizei, n.d.). Thus, the area of influence does not stop at the border and the team can continue working. It is important to highlight that no independent

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sovereign emerges. Rather, the team can be seen as a symbiosis of several sover- eigns so that no national sovereignty feels offended (Polizeidirektion Osnabrück, 2008: 2). By defining the leadership on the particular territory, the cooperation part- ners from both countries are treated equally.

The chances and benefits of the Cross-Border Police Team’s work should be pointed out. Still, it is also necessary to consider the problems and challenging issues that the cooperation brings with it in order to be able to evaluate it critically later.

First of all, it stands out that the team achieves very good results of its work. The fact that the team handles approximately 1900 cases per year, which for example concern irregular immigration, burglary or smuggling of drugs (Anonymous, 2014), shows the relevance of such a team with common patrols. A harmonized, coordina- ted work and a non-bureaucratic collaboration (Bundespolizei, n.d.) simplify crime prosecution in the border region. Because the cooperation is institutionalized, there are clear rules so that misunderstandings are prevented. In order to enable the most beneficial police performance, several conditions have to be fulfilled. First of all, German and Dutch are two different languages so that a direct and fluent communication between the bi-national policemen is hindered. Much time and also money would be necessary if a translator had to translate important information to the other language. Since the police officers working together in the team have to speak their colleagues’ language, the language barriers could be eliminated. Also, legal systems and laws differ from country to country. Thus, if the precondition of having intercultural knowledge is not fulfilled, a police cooperation will not be very productive. The police officers of the Cross-Border Team have a sufficient knowledge of the public authorities and laws of the other country. Also, they have intercultural competences which are very useful when working with people from other countries. Furthermore, the police officers can use a big network (Anonymous, 2011) which is helpful when information, detailed knowledge, and expertise are needed. The easier exchange of information is also a big advantage (Anonymous, 2014) (also see Chapter 4.3). All in all, the Police Team working in the EUREGIO area fulfills these requirements for a more fruitful work compared with a situation in which the police institutions of both countries worked only along their side of the border.

The most important positive aspect of the team is its flexibility (Anonymous, 2015) because it is able to intervene immediately. It is able to adapt to requirements of certain situations in a fast way because, in contrast to the national police, the Cross- Border Police Team is able to uncover crimes that were committed on both sides of a border (Anonymous, 2014). In the past, it used to be a problem that a criminal crossing a border could not be pursued any longer because the territorial authority would be with the police of the other country. It used to be problematic that criminals could freely cross borders without being controlled (due to Schengen) which made

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national institutions defenseless (Kämper, 2001: 25). With the Cross-Border Police Team, there is no responsibility problem any more in the case the delinquent is crossing the border (Bundespolizei, n.d.) because the necessary legal basis is given (Anonymous, 2011). Since citizens are able to move around freely in the EU, it is also necessary for the police to have the right to work across borders. This also means an increased security for both countries because territorial sovereignty and responsibility cannot hinder the police any more (Polizeidirektion Osnabrück, 2008: 2).

Reinhold Hilbers, member of the parliament of Lower Saxony, sees the Cross-Bor- der Police Team as a positive example for a successful cooperation, leading to the perception of a unified Europe without any visible clear borders (Anonymous, 2015).

Both countries are willing to share their national sovereignty which cannot be taken for granted. The functioning example of police cooperation is a proof of a successful application of international understanding in practice. Among the citizens, there is a high acceptance of the bi-national police teams (Bundespolizei, n.d.). Another positive consequence to be underlined is a reduction of prejudices or feelings of stran- geness towards the other country (Anonymous, 2011). This is because citizens ex- perience police officers from the other country in their reality and get used to the fact that these officers also have competences on their territory.

The previously mentioned aspects make clear that the cooperation of the police forces of Germany and the Netherlands offers great advantages for both countries which should not be underestimated. The Cross-Border Police Team demonstrates an outstanding adaptation to modern challenges for police work. However, there are also challenging aspects, such as the higher amount of work resulting from the cooperation. Without doubt, more intensive work is required (Anonymous, 2011) to achieve all of the many goals the police have set itself. Technical issues and legal affairs have to be considered (Anonymous, 2015). Furthermore, much coordination is necessary in order to make the cooperation work. Due to that, more resources of time and manpower have to be used. Also, the police officers have to be able to speak the language of the other country, respectively, because a knowledge of the language is indispensable for the cooperation to function. Besides, sensitivity of the other culture, respectively, is essential for members of the team (Röhrl, 2010: 294).

The training of the police officers in terms of intercultural competences and language means a big effort in apprenticeship (Anonymous, 2011). In order to fulfill these criteria, the institutions have to invest more money into the education of their police officers. To sum up, a Cross-Border Police Team needs very well-qualified police officers who are willing to further educate themselves to fulfill the demanding tasks of their jobs.

Another problem is the crucial juridical accountability of the police. The question that has to be posed in a democratic political system is how and by whom the

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executive in form of the police can be juridically controlled if two countries are involved. The police acting as a national institution are liable to the system of justice in the respective state. However, cross-border police actions make a juridical accountability difficult because several bi-national actors are involved. Apart from that, the protection of data privacy and the question how data abuse can be avoided should be emphasized. This is relevant as international police cooperation mainly targets an exchange of information (Knelangen, 2009: 32).

All in all, the arguments of flexibility and international understanding make a good case for further fostering police cooperation. However, more resources of time and money are necessary, and a big effort has to be put into the protection of data privacy. Weighing up both chances and critical aspects of the Cross-Border Police Team, it is obvious that the advantages predominate although there are some obstacles.

4.2. Cross-Border Hot Pursuit and Observation

This section deals with cross-border hot pursuit because it is a form of “trans-border [police] cooperation“ (Gless, 2010: 30) and thus relevant for the German-Dutch police cooperation in the EUREGIO area. If the police are in hot pursuit of a person and the latter crosses a national border while escaping from the police, the presence of a border will be an obstacle for fulfilling the task. The pursuing police are confronted with a problem of responsibility because their target subject moves to another area of police responsibility. In such a situation, the prosecuting authorities rely on police cooperation so that they can continue the hot pursuit across a national border (Ban- tekas & Nash, 2007: 407). This is why some European states came to the conclusion that they have to facilitate cross-border hot pursuit for the police. Otherwise, it would be easy for criminals to flee from crime prosecution if they just crossed the border, knowing that the national police had no sovereign rights on foreign territory.

Also, this section will consider cross-border observation which is required in a situation in which an alleged criminal person being observed by the police crosses the border of a country. Especially in the 1990s, police cooperation on EU level emphasized this instrument which is important, in particular, for police procedures across borders and, hence, also for the example of the German-Dutch cooperation in the EUREGIO area.

There are several legal arrangements dealing with these two topics, both on the European and the interstate level. Therefore, this section will analyze which possibilities the police can use, based on several treaties.

4.2.1. Cross-Border Hot Pursuit

Regarding cross-border hot pursuit in the context of the police cooperation between Germany and the Netherlands, it is crucial to have a look at the broader legal